A prenuptial/precivil partnership agreement is entered into by the parties before entering into their marriage/civil partnership and sets out what will happen in the unhappy event that the relationship breaks down and ends in divorce/dissolution.
Who enters into a prenuptial/precivil partnership agreement?
Usually the more financially well off partner instigates the idea of an agreement. Although it can be something suggested/insisted upon by a parent who has given or is about to give substantial sums of money or property to one of the parties.
Why have a prenuptial/precivil partnership agreement?
Whilst a prenuptial/precivil partnership agreement is not legally binding. If properly prepared and signed it will carry a great deal of weight. In a leading case decided in 2010 the court said
"The court should give effect to a nuptial agreement..." (this includes a prenuptial/precivil partnership agreement) "... if it was freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement".
The court went on to say that the agreement would not be allowed to prejudice the reasonable requirements of any children or to leave one spouse in a predicament of real need. If it did the court would intervene and make an order. This allows the court to effectively act as a safety net intervening and increasing the sums to be paid to avoid real hardship to the financially weaker party and any children.
Where there is no prenuptial/precivil partnership agreement, the courts in the UK have a wide discretion when dealing with finances. As a rule of thumb an award of the court will be more generous to the financially weaker partner than the provision contained in a prenuptial/precivil partnership agreement. This is why, where there is financial disparity between the parties, more and more people, are opting for a prenuptial/precivil partnership agreement.
This is not very romantic I hear you say. I agree. However 1 in 3 marriages end in divorce, and whilst those entering into marriage or a civil partnership do so in good faith on the basis that it will be a lifelong commitment, they realise that there is at the very least a chance that the relationship will falter and be brought to an end by divorce or dissolution. One or both of the parties may have heard horror stories from friends or relatives or read about cases in the news and want to avoid acrimonious legal proceedings. They may also feel more comfortable knowing that if things do go wrong they have an agreement setting out how finances will be dealt with rather than trying to negotiate when they are also trying to recover and cope with the breakdown of their relationship.
In short if you would like to protect your assets that you are bringing into the relationship and would like the certainty of knowing (although this can never be 100% guaranteed) what the financial implications of a divorce or dissolution will be these are two very good reasons for entering into a prenuptial/precivil agreement.
How to obtain a Prenuptial/precivil agreement.
By instructing solicitors
To make a prenuptial/precivil agreement as water tight as possible it is best for both parties to have legal advice. The same lawyer cannot advise both parties. Usually the lawyer instructed by the financially stronger person drafts the agreement which is often a very detailed document. This is then sent to the other party asking them to obtain legal advice. Even if the couple have spoken about the agreement receiving a letter from a solicitor with the agreement can feel very daunting, it can raise tensions between the couple at a time when they are also concentrating on preparing for their happy day. The mediation process should avoid this scenario.
Through the mediation process
The parties can meet with a mediator either before or after they seek legal advice.
Usually each person will have a pre mediation meeting to discuss what it is they are expecting and hoping to achieve in the mediation process and to answer any other questions about the process. The couple then meet with the mediator together to discuss what it is they would like and what they would like the prenuptial/precivil agreement to achieve. During the mediation they will make a full disclosure of their respective financial positions. They can discuss what if anything is concerning them regarding entering into the agreement. A conversation can also be had about what might be different if the relationship broke down; with an agreement in place and without an agreement in place.
The mediator is neutral and will not provide any advice to the couple (s)he can give information in response to questions.
Following a successful mediation the mediator will send a document called a memo of understanding to each party for them to take to their lawyers so that they can each obtain legal advice before the prenuptial/precivil agreement is drawn up. The advantage of discussing the prenuptial/precivil partnership agreement in mediation is that the couple will discuss their aspirations and concerns in a confidential and safe environment before pen is put to paper and the letter from the solicitor should pretty much contain an agreed document.
I hope you can now see why I consider prenuptial/civil partnerships and mediation are a marriage made in heaven.
If you would like further information or an informal chat about mediation and prenuptial/precivil agreements please do not hesitate to contact me on firstname.lastname@example.org or 07957 663092
Mediator and Arbitrator
Divorce and Family Lawyer